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My first common-law marriage

Yesterday, for the first time in my 17+ years of practicing family law, I helped validate a common-law marriage. Unlike the typical common-law marriage litigated in family court, in which one “spouse” claims marriage and the other “spouse” disclaims marriage, this was a common-law marriage by consent.

This couple came to me with factual circumstances that appeared to exist in myriad sitcoms and rom coms but not real life: they’d obtained a marriage license and undergone a ceremonial marriage in 1986 but the husband hadn’t yet completed his divorce from his previous wife. Recently, looking through boxes of old paperwork, he’d realized this marriage took place months before his previous divorce and thus was a void, bigamous, marriage. He and his wife wanted to validate the marriage they thought they’d had for the past 25 years.

S.C. Code § 63-3-530(B) gives the family court “concurrent jurisdiction to hear and determine matters relating to … common-law marriage…” This couple could have gotten a new license and undergone another marriage ceremony but this would make them newlyweds. They wanted to be “old” marrieds. So, utilizing § 63-3-530(B), we filed a petition to validate their common-law marriage. We offered the judge two alternative marriage dates: one from 1987, when the husband’s previous marriage ended in divorce and one from 2006 when they’d moved to South Carolina (previously they had only lived in states that did not recognize common-law marriage).

The family court judge–one with over a dozen years experience on the bench–had never presided over a case establishing a common-law marriage by consent. In fact, she noted, this was only the second common-law marriage case she had presided over. It was also my first common-law marriage trial. Despite my acknowledging that the parties had not resided in a common-law marriage state until 2006, she granted them a marriage date of 1987. Rather than being married twenty-five years (the date of their initial ceremonial marriage), or newlyweds (had they simply undergone the procedure again), or five years (had the family court validated their marriage from the date they moved to South Carolina), they are now married for twenty-four years. They are old marrieds.

Folks who have never married or not been married for long might not understand why it was important to this couple that their marriage be validated as an old marriage. As someone who’s been married twenty-one years I understand completely, as did my wife when I described this case to her. There’s pride in sustaining a marriage for a generation or more. In a sense the marriage itself has independent significance: a symbol of a life well-lived or a commitment well-honored. I’ve never understood folks who consider living together “in love” as being the equivalent of marriage; the mere act of entering a legally binding commitment–one that only death or the court can dissolve–is meaningful and romantic. I was glad to help this couple obtain the legal acknowledgment of their long-term commitment. And, as someone who’s been critical of common-law marriage in the past, I have come to see that the doctrine of common-law marriage may have some use when both parties consent to that marriage.

Because we have to notarize so many affidavits and financial declarations, most South Carolina attorneys who practice family law also become notary publics. S.C. Code § 20-1-20 authorizes notary publics to marry people. I hope to officiate at a wedding at some point in my life; so far no one has asked. I’m a bit jealous of a family law colleague of mine, Dana Rachel Wine, who has developed a sideline officiating at weddings. Spending so much effort tearing marriages apart, I would love, just once, to bind a couple together. Perhaps creating this common-law marriage is the closest I will ever get to achieving that goal.

Thank you for your excellent reporting. Although I had thought this personal injury lawyer had lost his love for an area of the law I had practiced in for years, your blog has revived my interest in family law. Thank you.

Perhaps it is of interest that in addition to performing a handful of South Carolina marriages, using my computer, I sent $3.00 to the Universal Light Church (I believe that’s correct) and became a minister which allowed me to preside over a marriage ceremony on the beach in Monterey, California. I often thought that for $20. I could have been the Pope.

I would love to know the name of the judge who provided this service to this couple.

Dana Wine

Greg-I liked your post and thanks for the mention. You are right that performing weddings certainly is a high point in a career based on the dissolution of marriages. I hope you get your chance soon and am sure you will. You’d do a nice job.

I married one couple, my first clients, about two weeks before I was admitted to practice. They had a valid common law marriage but white judges in South Carolina in 1968 did not believe that Blacks could have common law marriages. It was easier for me to marry the couple rather than try to prove a common law marriage.

Common law marriage is a great concept that can prevent injustice, although it is also capable of some mischief.

Presiding over a wedding is always a joy — I have been blessed to help many former clients “remarry” and I keep the wedding photos of them on display in my office to help remind my other clients of happy days to come.

If I ever remarry myself, I’ll let you know and perhaps you can preside . . .